South Australian Employment Tribunal (Miscellaneous) Amendment Bill

The Hon. T.A. FRANKS: I raised at least four questions in my second reading contribution and I was wondering when they would be answered.

The Hon. P. MALINAUSKAS: I thank the Hon. Tammy Franks, because on 9 May this year she asked a number of questions regarding this bill and I will attempt to come back with some detailed answers now. The Statutes Amendment (South Australian Employment Tribunal) Act 2016 is an act of significant length, with some 166 sections over 80 pages. Its object is also substantial: to transfer to the South Australian Employment Tribunal jurisdiction under around 13 different statutes, as well as common law and criminal jurisdiction.

Despite all due care being taken, some errors and omissions were made in its drafting. The bill seeks to resolve those oversights. This does not include the amendment to section 45 of the South Australian Employment Tribunal Act 2014, which was an amendment sought by the tribunal itself, following passage of the amendment act. In the second reading contribution of the Hon. Tung Ngo, immediately after Ms Franks' speech, Mr Ngo advised the council how these oversights were detected. Both Mr Ngo and I, in my own contribution, outlined the serious consequences that would result if this bill were not passed, particularly in respect of the tribunal's proposed jurisdiction under the Education Act 1972 and the Technical and Further Education Act 1975.

The Hon. Ms Franks raised some issues in correspondence from the Australian Education Union. I am advised that the minister's office received the same correspondence and is due to meet with the AEU on 15 May to discuss their concerns. The AEU's concerns relate in part to their role in proceedings before the tribunal. Currently, under the Education Act and the TAFE Act, when the Teachers Appeal Board hears review proceedings brought by teachers and TAFE officers, the board must sit with a presiding member from the industrial court and two lay members.

One lay member is derived from a panel of employees of the relevant government department and one is derived from a panel of teachers or TAFE officers nominated by the AEU. The amendment act amends the Education Act and the TAFE Act to remove references to the Teachers Appeal Board and confers its jurisdiction on the tribunal. Aside from removing redundant procedural provisions, which are now to be found in the SAET Act 2014 itself, the amendment act largely retains the status quo in regard to the review jurisdiction under the Education Act and the TAFE Act.

The only departure from the status quo is in respect of the use of panel members in proceedings. These are now called supplementary panel members and will only be used in proceedings if the president of the SAET so determines. This change was made following feedback from the tribunal itself, which observed that having to list panel members for each proceeding was inefficient and cumbersome. In many cases, the issues that were the subject of the dispute would have been capable of being adequately handled by the judicial officer sitting alone, although in complex cases the assistance of panel members with specialised knowledge and expertise was an advantage.

Under the amendment act, it will be a question for the president to determine whether a matter is sufficiently complex to warrant the judicial member sitting with panel members. This change regarding panel members was not made only to proceedings under the Education Act and the TAFE Act, it applies for the same reasons also to proceedings under the Equal Opportunity Act 1994, the Fire and Emergency Services Act 2005, the Public Sector Act 2009 and the Work Health and Safety Act 2012.

In each of these jurisdictions, it is currently mandatory for panel members to sit in proceedings, but this will also be a matter for the president's direction when these jurisdictions are conferred upon the tribunal. The AEU was consulted on the amendment act prior to its passage and I am advised that discussions were held between the AEU leadership and the minister's office on these panel member changes.

The AEU's views at the time were taken into account during the drafting of the bill. However, the government's preference was that supplementary panel members should only sit in proceedings if the president judges that their knowledge and expertise is actually required. Where they are required, they will be sourced from a panel of employees of the relevant department and nominees of the AEU, as is presently the case.

The AEU's remaining comments in its correspondence are mainly observations about the draft education regulations recently circulated for comment to employer and employee representative groups. The proposed variation of the education regulations is consequential upon the amendments made to the Education Act by the amendment act. As with the amendment of the act, it is not necessary for the Education Regulations to make any provisions of a procedural nature as they will be contained in the tribunal's own act, regulations and rules.

The draft Education Regulations do not propose to remove reference to the AEU, only to remove reference to the redundant description of the AEU as the organisation formerly known as the institute of teachers, as referred to in section 45 of the act. The intention is that the AEU will continue to have its current role in nominating persons as panel members under the Education Act. Any changes that the government may propose to the jurisdiction of the Teachers Registration Board will be the subject of consultation, including with the AEU, whose views on the matter will be taken into account at that time. I thank Ms Franks for her questions and I trust that my explanation fully answers those questions.